NGO Law Monitor: Kenya

Update: A bill that seeks to revise the Public Benefits Organisations (PBO) Act 2013, amongst other laws, was published on May 30, 2014. The Statutes Law Miscellaneous Amendments Bill 2014 contains proposals to amend the PBO Act. The proposals are largely similar to those included in the Miscellaneous Amendments Bill of 2013, which was rejected by Parliament in December 2013. Conspicuously missing, however, are the controversial proposals that sought to restrict foreign funding to PBOs. Civil society has expressed that it is pleased with several proposed amendments, but that it is concerned about other amendments that "do not promote an enabling environment for the CSO sector." Notably, in October 2014, fresh amendments to the PBO Act sponsored by Gatundu South MP Moses Kuria were reportedly under consideration. The amendments, if adopted, would limit foreign funding of NGOs to 15 percent. Please see the "Pending NGO Legislative / Regulatory Initiatives" section of this report for more details.

Introduction

Traditionally, Kenyans lived in communities characterized by strong patterns of social ties and relations. People came together to promote mutual interests, pool resources, express ideas and participate in the governance of their communities as the communal structures afforded them the vehicles to do so. These structures included ethnic and kinship groups, such as families, clans and lineages, as well as councils of elders and age groups.

Associational life is still deeply rooted in Kenya. It forms the basis on which Harambee (self-help) initiatives thrive. The term civil society, however, is relatively recent and is often associated with quests for social transformation and the realization of social justice. From the early 1920s until 1963, civil society organizations [1] (NGOs) played a prominent role in the struggle for independence. From the time of independence until the late 1970s, many NGOs worked closely with the government to complement its service delivery efforts. However, the 1980s and 1990s were characterized by new dynamics: as western donors made economic support to the Government conditional on good governance and democratization, NGOs began to demand a multi-party system. NGOs also became more vocal on national political issues such as constitutional reform and good governance. Indeed, NGOs contributed immensely towards the transition (in 2002) from authoritarian to democratic rule through their efforts to advance political rights and freedoms as well to broaden the democratic process.

The new political dispensation in 2003 brought about an observed improvement in government/NGO relations as meaningful dialogue and increased engagement between the two sectors began to take place. The former and current Governments have encouraged NGOs and other stakeholders to partner with them, especially in addressing the complex issues facing the country. However, NGOs are aware that they need to address issues of competence, sustainability, and credibility within their own sector more earnestly if they are to play their role and engage with other partners effectively. There are some efforts being made in this regard.

Many of Kenya’s laws are statutory in nature and generally codify England’s common law rules. In addition, Kenyan legislation regulates organizations substantially through enforcement of the organization's founding documents. Generally, the legal environment in which NGOs operate is supportive of civil society. However, the legal framework is characterized by multiple laws, which are implemented by different government ministries, agencies and departments. The diverse and sometimes overlapping laws present difficulties for the government in developing harmonized, systematic and coordinated plans and approaches to civil society. To compound the problem, the NGO regulatory agencies are under-resourced and find it difficult to manage their basic functions effectively. For example, although the NGO Coordination Board (the government body that regulates NGOs) can issue directives on the need for NGOs to file their annual returns, it lacks the capacity to carry out inspections and ensure that NGOs adhere to these directives.

Nonetheless, both the Government and civil society expect that the Public Benefit Organisations (PBO) Act, 2013 will address some of the challenges that the sector faces under the law that it supersedes, the Non-Governmental Organizations Coordination Act, 1990. Parliament is expected to soon deliberate on proposals contained in a Bill that aims to amend the PBO Act. The culmination of this legislative process will herald the operation of the PBO Act.

[1] The term Civil Society Organizations (NGOs) is used generally in Kenya to refer to the wide array of organizations that operate in the realm between the individual and the state and are formed to promote the interests of their members or the public good. The term “NGO” is used specifically to refer to entities that are registered by the NGO Coordination Bureau. Though NGOs are just a small part of the larger NGO sector, they are the most visible. Under the NGO Coordination Act of 1990, NGOs can be established for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services.

NGOs must reach agreement with the NGO Coordination Board on a variety of issues before commencing activities.

(1) Registrar of Societies has wide discretion relating to the investigation, arrest, and search of any society;
(2) The failure to maintain a register of members or annual accounts may expose a society to heavy penalties, including imprisonment;
(3) Where it is alleged that a society is unlawful, the burden of proof is on the society.

Barriers to Speech and/or Advocacy

No legal barriers

No legal barriers

Barriers to International Contact

No NGO can become a branch or affiliate of foreign organizations of policial nature, except with prior consent of the NGO Coordination Board.

No legal barriers

Barriers to Resources

No legal barriers

No legal barriers

Barriers to Assembly

No time limit specified for the authorities to respond to organizers' notification requests or right of appeal; counter-demonstrations prohibited; excessive force used by security officers.

No time limit specified for the authorities to respond to organizers' notification requests or right of appeal; counter-demonstrations prohibited; excessive force used by security officers.

International and Regional Human Rights Agreements

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

Yes

1972

Optional Protocol to ICESCR (OP-ICESCR)

No

--

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Yes

2001

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Yes

1984

Optional Protocol to the Convention on the Elimination of Discrimination Against Women

No

--

Convention on the Rights of the Child (CRC)

Yes

1990

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)

No

--

Convention on the Rights of Persons with Disabilities (CRPD)

Yes

2008

Regional Treaties

African Charter on Human and Peoples' Rights

Yes

1992

African Charter on the Rights and Welfare of the Child

Yes

2000

Treaty Establishing the African Economic Community

Yes

2001

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa

Yes

2006

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights

Yes

2004

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

On August 4, 2010, at a national referendum, Kenyans voted in favor of a new constitution. The constitution review process, which preceded the referendum, has been touted as the most participatory constitution review process worldwide, as it was consultative from the start and largely integrated the views of the public in the final document. The new constitution promises far-reaching and comprehensive reforms in the governance of the country.

Relevant provisions include:

Implementation of rights and fundamental freedoms
21. (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

Freedom Of Expression

33. (1) Every person has the right to freedom of expression, which includes—

freedom to seek, receive or impart information or ideas;

freedom of artistic creativity; and

academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

propaganda for war;

incitement to violence;

hate speech; or

advocacy of hatred that—

constitutes ethnic incitement, vilification of others or incitement to cause harm; or

is based on any ground of discrimination specified or contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

Access To Information

35. (1) Every citizen has the right of access to—

information held by the State; and

information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

Freedom Of Association

36. (1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

(2) A person shall not be compelled to join an association of any kind.

(3) Any legislation that requires registration of an association of any kind shall provide that—

registration may not be withheld or withdrawn unreasonably; and

there shall be a right to have a fair hearing before a registration is cancelled.

Assembly, demonstration, picketing and petition

37. Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

Right to Language and culture

44. (1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.

Right to Assembly, demonstration, picketing and petition

On August 27, immediately after a ceremony where the New Constitution was promulgated, two men were arrested while demonstrating against the invitation extended by the Kenyan State to Sudanese President Omar al-Bashir. They claimed that the invitation was in disregard of a warrant for President Bashir’s arrest, which was issued by the International Criminal Court.

The two, Francis Kanyare Kihara and Peter Mbwika Muli, were then charged with taking part in an unlawful assembly contrary to Section 78 (1) as read with Section 79 of the Penal Code. The Chief Magistrate dismissed their application to have the charge nullified and ruled that his court had no legal authority to interpret the Constitution on issues of rights and freedoms.

Though Article 23(1) of the Constitution gives the High Court powers to hear and determine matters pertaining to violation of rights or freedoms in the Bill of Rights, Article 23(2) requires Parliament to enact a law to give Magistrate Courts similar authority. Such laws have not yet been enacted.

In court, the accused argued that the Constitution granted them the right to demonstrate. Article 37 provides that every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. Their lawyers argued that by the time the demonstrations were held, the President had already promulgated the new Constitution.

The two accused were released on cash bail and their hearing was set for December.

Court Cases on Public Participation

Kenyan courts have decided several cases interpreting the new Constitution on issues related to the freedom of association and public participation, including one case in the context of trade unions. In the National Gender and Equality Commission V Independent Electoral and Boundaries Commission (IEBC) & Another [2013] eKLR, the court found that the IEBC did not develop sufficient guidelines or take specific steps aimed at increasing or promoting the participation of vulnerable groups within the electoral process other than passively inspecting the party lists submitted to it.

In another case, Law Society of Kenya V Attorney General & 2 Others, [2013] eKLR, the courts sought to determine whether there was public participation as enshrined in the Constitution. The Law Society of Kenya argued that the Statute Law (Miscellaneous Amendment) Act, 2012 was enacted without public participation required by the national values and principles of governance set out in Article 10 in the Constitution. They urged the court to annul the law in the event it found that there was no public participation noting that in view of the magnitude of the amendments, there ought to have been public consultation. The court found that the petitioner did not show or demonstrate that there was no public participation in the whole process.

Similarly, in Commission for the Implementation of the Constitution v Parliament of Kenya & another & 2 others & 2 others, [2013] eKLR, Katiba Institute (a not-for-profit organization) submitted that the Leadership and Integrity Act was invalid insofar as it ignored views of Kenyans on effective enforcement, hence defeating the essence of public participation. However, the Court did not hold that the Act is unconstitutional for want of public participation because the petitioners did not address the standard to assess the level of public participation in the legislative process.

In addition, in Moses Munyendo & 908 others v Attorney General & another, [2013] eKLR, the court considered whether the Crops Act, 2012 and the Agriculture, Fisheries and Food Authority Act, 2012 (“the AFFA”) which were passed into law and assented to by the President on January 14, 2013, were unconstitutional on the grounds that they were enacted without public participation. However, the court held that the petitioners did not discharge their burden of showing that the statutes were enacted without public participation.

Finally, in Nairobi Metropolitan PSV SaccosUnion Limited & 25 others v County Of Nairobi Government & 3 others, [2013] eKLR, the petitioners sought a declaration that paragraph 6.1 of the Schedule to the Nairobi County Finance Act, 2013, which authorized the Nairobi City County to change the motor-vehicle parking levies, is unconstitutional, to the extent that there was no public participation in the process of the making, and enactment of the Act. The court held and found that there was adequate and appropriate public participation prior to the enactment of paragraph 6.1 in the schedule to the Nairobi City County Finance Act, 2013.

Pending NGO Legislative / Regulatory Initiatives

1. Through the Statutes Law Miscellaneous (Amendments) Bill, 2014, which is now being discussed in Parliament, the Government seeks to amend the law that will govern public benefit organisations (PBOs): the PBO Act. The PBO Act is not yet operational and will only commence after the Cabinet Secretary for Devolution and Planning publishes a date for its commencement. Since February 2014, NGOs around the country have been urging the Cabinet Secretary to announce the law's commencement date. In July 2014, civil society expressed that it is pleased with several proposed amendments but that it is concerned about other amendments that "do not promote an enabling environment for the CSO sector."

This history of this development is as folllows. On October 30, 2013, the Government published the Statute Law (Miscellaneous Amendments) Bill, 2013, which contained several amendments to the Public Benefit Organisations (PBO) Act, including proposals to cap the amount of funding NGOs can receive from external donors at 15% of their budget. However, the proposals to amend the PBO Act were defeated during the Second Reading in Parliament and withdrawn from the Bill.

Then, through the Statutes Law Miscellaneous (Amendments) Bill, 2014, the Government once again sought to amend the PBO Act in 2014. Unlike its predecessor (Statutes Law Miscellaneous (Amendments) Bill, 2013 ), the differently worded Statutes Law Miscellaneous (Amendments) Bill, 2014did not propose to restrict the amount and sources of income available to PBOs.

However, some of the proposals that were a source of concern for civil society in the Bill of 2013 were still contained in the Bill of 2014. For example, there were proposals to give the PBO Regulatory Authority wide discretionary power to impose terms and conditions for the granting of certificates of registration. There were also proposals to limit the independence of the PBO Regulatory Authority by giving the executive greater say in making appointments to the board of the Regulatory Authority. Further, the voice of civil society was to be greatly reduced as the proposals sought to cut down the number of representatives to the board.The proposals to amend the PBO Act were withdrawn in the Statutes LawMiscellaneous Amendment Bill, 2014.

The Public Benefit Organisations (PBO) Act is not yet operational and will only commence after the Cabinet Secretary for Devolution and Planning publishes a date for its commencement. Since February 2014, NGOs around the country have been urging the Cabinet Secretary to announce the law's commencement date. However, the law, which came into existence in January 2013, has been beleaguered by several attempts to amend it substantially, even before it begins to operate.

Currently, the National Council for NGOs (an umbrella association for NGOs in Kenya) together with the Ministry of Devolution and Planning (the Ministry in charge of NGOs) seeks to sponsor a bill, which proposes to amend the PBO Act 2013. In October 2014, the National Council of NGOs circulated a Memorandum that outlines 54 proposed amendments to the Public Benefits Organisations (PBO) Act. Some of the proposals are highlighted below. They call for:

More effective regulation of PBOs by:

Re-registration and regulation of all agencies doing public benefits work (approximately 350,000 agencies) under one regulatory regime. This is to include, in addition to NGOs, organisations that are registered under other legal frameworks like the Companies Act and the Societies Act;

Requiring PBOs to publish their annual audited financial accounts in newspapers of national circulation;

Compelling PBOs to submit their audited accounts to the Auditor General (the Government official tasked with auditing public accounts);

Empowering the PBO Regulatory Authority to impose terms and conditions for the grant of registration certificates.

Greater transparency and accountability of PBOs by:

Preventing PBOs from receiving more than fifteen percent of their total funding from external donors;

Requiring PBOs, which receive more than 15% from external donors to apply for a certificate as a “foreign public benefit organization”.

Increasing the proportion of Kenyan citizens that international PBOs must have on their local boards, from 1/3 to 2/3.

Enhanced control by the Executive of the board of the PBO Regulatory Authority by:

Giving state officers the task of appointing Board members of the PBO Regulatory Authority;

Reducing the number of persons from the Federation of PBOs who will sit on the Board.

In addition, the proposals also seek to remove the provisions in the PBO Act, which:

Require the Government to provide financial, tax incentives, benefits and other support to PBOs;

Compel every state organ to ensure that its policies and other transactions are carried out in a way that supports a favourable environment for PBOs

2. The Rules and Regulations that will guide implementation of the PBO Act have yet to be passed. The NGO Coordination Board has prepared and published draft Rules and Regulations. Once discussed by the public and gazetted, the Rules and Regulations, together with the Act, will likely pave the way for the establishment of a more conducive environment for PBOs. Various stakeholders are discussing their expectations regarding the Rules and Regulations.

3. The Civil Society Organisation (CSO) Initiative on Standards is a civil society-led initiative, which aims to strengthen the competence and sustainability of the CSO sector through developing sector-wide standards, building the capacity of CSOs to comply with the standards and establishing an institution to assess compliance with the standards. This initiative brings together CSO networks and capacity building initiatives that were previously working on the development and application of CSO Standards, and also engaged CSO leaders in participatory workshops held in all eight provinces of the country.

Following sector wide consultations, CSO leaders agreed to set up a new organization that would promote CSO standards through certification and capacity building. The organization called VIWANGO (which means standards in Swahili) is registered as a not-for-profit company. VIWANGO’s mission is to “improve performance of NGOs through the promotion and application of minimum standards and voluntary, independent certification.” Currently, VIWANGO is finalizing the certification mechanism in readiness to assess its first CSO applicants on their level of compliance with the CSO standards.

Through this sector-wide initiative, CSOs are sending an important message to the Government and all potential partners that they intend to conduct themselves in a professional, competent and transparent manner. It will therefore lay the foundation for improved relationships between CSOs and the Government.

Legal Analysis

Organizational Forms

NGOs in Kenya may assume one of six available organizational forms:
(1) Non-Governmental Organizations (NGOs) are registered by the NGO Coordination Board and governed by the NGO Coordination Act of 1990 (Act No. 19, Laws of Kenya) and its Regulations of 1992. The Act will be effectively replaced by the Public Benefit Organisations (PBO) Act, 2013, as soon as the Cabinet Secretary for Devolution officially announces the PBO Act's commencement date. All NGOs that were registered under the NGO Coordination Act will be deemed to be registered as Public Benefit Organisations (PBOs) on the commencement date. The PBO Act, under section 2, defines “Public Benefit Organisation” as a voluntary membership or non membership grouping of individuals or organisations, which is autonomous, non-partisan, non-profit making and which is:

– Organised and operated locally, nationally or internationally;
– Engages in defined public benefit activities; and
– Registered by the Authority.

“Public Benefit Activity” is defined under section 2 as “an activity that supports or promotes public benefit by enhancing or promoting the economic, environmental, social or cultural development or protecting the environment or lobbying or advocating on issues of general public interest or the interest or well-being of the general public or a category of individuals or organisations.

(2) Companies limited by guarantee and not having share capital are registered by the Registrar of Companies under the Companies Act (Chapter 486, Laws of Kenya). They can exist to promote any legal purpose as long as these are contained in the memorandum of incorporation and articles of incorporation. As but one example, many service delivery institutions – such as schools and healthcare organizations – are registered as companies limited by guarantee and having no share capital.

(3) Trusts are established by families, groups or individuals to hold and manage assets for the benefit of others. Trusts may be incorporated under the Trustees (Perpetual Succession) Act (Chapter 164, Laws of Kenya) for religious, educational, literary, scientific, social, athletic, or charitable purposes (Trustees (Perpetual Succession) Act, Section 3(1)).

(4) Under the Societies Act, a society is "any club, company, partnership or other association of ten or more persons, whatever its nature or object, established in Kenya or having its headquarters or chief place of business in Kenya" (Societies Act, Section 2). The definition specifically excludes trade unions, cooperatives, corporations, and certain other entities. Societies are registered and regulated by the Registrar of Societies (Societies Act, Section 8). After grassroots organizations, societies are the second largest category of NGO: there are over 70,000 societies registered in Kenya.

(5) Cooperative societies and unions are registered at the Department of Cooperatives under the Cooperative Societies Act (Amended) 2004, No. 12 of 1997. They include consumer, producer and marketing cooperative societies in rural and urban areas and housing development societies found in major urban areas. They are voluntary membership organiations and advance the welfare, economic interests and goals of their members.

(6) Grassroots organizations include harambee or self-help groups and community-based organizations (CBOs) such as neighborhood associations. Self-help groups and CBOs are formally recognized through registration under the Department of Social Services in the Ministry of Gender and Children Affairs. As the largest group in the NGO sector, they operate primarily at the village and community level.

Public Benefit Status

Under section 7 of the PBO Act, the Public Benefit Organizations Regulatory Authority (the government agency that will register PBOs) has the authority to bestow public benefit organization status on organizations that are registered as PBOs, and those that are registered under other laws.

Currently registered NGOs are recognized under the NGO Coordination Act as being “established for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services.”

The other NGO forms are not restricted to public benefit purposes:

Trusts may be established to promote religious, educational, literary, scientific, social or charitable, or athletic purposes.

Societies may be established for any purpose or object.

Cooperative societies and unions can be created for the promotion of the welfare and economic interests of their members.

Grassroots organizations exist to advance the interests of their members and the immediate needs of the local communities in which they operate.

Barriers to Entry

Under the NGO Coordination Act (to be repealed by the PBO Act), ambiguous provisions were sometimes used to curtail transparency and hinder registration of certain NGOs. For example, the NGO Coordination Board could refuse registration of an NGO applicant if it was satisfied that its proposed activities or procedures were not “in the national interest”; or if it was satisfied, on the recommendation of the NGO Council, [1] that the applicant should not be registered. While the Board may sometimes furnish the applicant with an explanation for the refusal of registration, the Board was not legally required to do so. In practice, denial on the broad ground of the “national interest” has been used unjustifiably to curtail the rights of NGOs. [2]. However, Sections 6- 13 of the new PBO Act provide clear, straightforward criteria for registration of PBOs and a clear, explicit timeline for processing an application for registration.

The following is a range of potential legal barriers to formation, establishment and registration of NGOs under the NGO Coordination Act and the Societies Act:

First, the Government may deny registration of societies on vague and ambiguous grounds, which invite arbitrary and subjective decision-making. Similarly, the Registrar of Societies has wide discretion to refuse to register a society if he has “reasonable cause to believe” that the society has among its objects, or is likely to pursue or be used for, any unlawful purpose or any purpose prejudicial to or incompatible with the peace, welfare or good order in Kenya, or that the interests of peace, welfare or good order in Kenya would otherwise be likely to suffer prejudice by registration of the society. The Registrar may also refuse to register a society where he is satisfied that such society is a branch of, or is affiliated to or connected with, any organization or association of a political nature established outside Kenya. Additional reasons for denial apply where the terms of the constitution or rules of the society or the name of the society is in any respect repugnant to or inconsistent with any law or is otherwise undesirable.

Second, the NGO Coordination Act is vague and ambiguous on a number of issues where wide discretion is given to the NGO Board and the Minister. For example, the certificate of registration for NGOs may contain such terms and conditions as the NGO Coordination Board may prescribe. [3] There are no guidelines, however, to ensure that the Board uses this prescriptive power in a clear, objective and predictable manner.

Third, the NGO Coordination Act does not explicitly provide a fixed time period within which the NGO Coordination Board must act on NGO registration applications. In practice, however, applications for NGO registration are often processed within about 90 days.

Finally, NGOs and societies are subject to mandatory registration, at least according to the law as written, although this has not proved problematic in practice. Under the NGO Coordination Act, for example, it is illegal for any person to operate an NGO in Kenya without registration and a certificate under the NGO Coordination Act. In practice, however, many NGOs that fall within the definition of NGO have opted to register under alternative legal forms. The Societies Act provides that every society which is not a registered society or an exempted society is an unlawful society. Hence, where ten or more persons get together, they are expected, according to the law, to have that group registered. There are stiff penalties for operating as a society without a registration certificate. This legal provision is, however, rarely enforced.

[1] The NGO Council is a national umbrella body for NGOs. Once NGOs are registered by the NGO Coordination Board, they are required to apply for membership in the Council. The Council is supposed to represent the interests of its members, but is currently inactive.

Barriers to Operational Activity

The new PBO Act in section 4 makes the Government responsible for providing an enabling environment for PBOs to operate. This is in line with the Government's obligations under international law to respect the freedoms of association and assembly. PBOs have a duty to furnish the Regulatory Authority with their annual report of activities and audited financial returns, six months after the end of every financial year (Section 31). The Authority may institute inquiries to determine if the activities of a PBO do not comply with the PBO Act or any other law (section 42(1)(h)). The powers of the Authority to cancel or suspend registration of a PBO are limited to specific instances and to be exercised in line with clear procedures, aimed at safeguarding PBOs (section 18 and 19).

The Societies Act includes a number of potentially troubling legal barriers affecting societies:

The Act gives wide discretion to the Registrar of Societies and sweeping powers to various government officials with respect to investigating, arresting, entering and searching the premises of any society.

The Act makes it an offence for a society to fail to keep a register of its members, their names, and the date of admission and exit. Where societies fail to comply with requirements to provide membership lists, annual accounts or other information, they are liable to heavy penalties, including fines and imprisonment.

Where it is alleged that a society is an unlawful society, the burden of proving that it is a registered or exempted society or that it is not a society shall lie with the person charged.

In practice, however, these powers are rarely exercised. Societies generally operate under minimum supervision. Only occasionally, where a group is suspected to be conducting illegal activities, have the provisions in this Act been put into effect.

Barriers to Speech / Advocacy

Generally, there are no legal barriers for NGOs to speak out or engage in advocacy efforts on any issues of public importance. The PBO Act (sections 66 and 67) provides that PBOs may engage freely in research, education, publication, public policy and advocacy.

Barriers to International Contact

The NGO Coordination Act Regulations provide that no NGO can become a branch of or affiliated to or connected with any organization or group of a political nature established outside Kenya, except with the prior consent in writing of the NGO Coordination Board, obtained upon written application addressed to the Director and signed by three officers of the NGO. Where an NGO fails to do so, it is guilty of an offence. This provision may be interpreted narrowly and hence serve as a barrier to communication and cooperation.

Barriers to Resources

Generally, Kenyan law provides a conducive framework for NGOs to seek and secure funding. For example:

NGOs are permitted to engage in economic activities provided that the profits are used to further the NGO’s purposes and that the activities are directly related to the NGO’s purposes or carried out on behalf of its beneficiaries. NGOs can conduct the business activities either directly or through for-profit subsidiaries.

The PBO Act (section 65) provides that PBOs may engage in lawful economic activities provided the income is used solely to support the PBOs public benefit purposes.

Local resource mobilization through harambees (public fund-raisers) is recognized, as long as it adheres to the guidelines in the Public Collections Act, which is generally enabling.

There are no special rules relating to the receipt of foreign funds by NGOs.

NGOs are permitted to compete for government funds in free and open competitions where specific guidelines have been established. (There are, however, very few instances where NGOs receive funding from the Government.)

Barriers to Assembly

The freedom of assembly is protected in Kenya’s Constitution, in Article 37: “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” The Public Order Act regulates the organizations and staging of public gatherings and demonstrations.

Advance Notification. Under Sections 5(1) and 5(2) of the Public Order Act, notification of the intent to hold public meetings and public processions is mandatory. The threshold that triggers the notification requirement is when 10 people are present at an assembly. Section 5(2) of the Public Order Act states that, “Any person intending to convene a public meeting or a public procession shall notify the regulating officer of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession.” At least two practical concerns arise:

There is no time limit specified for the regulatory authority to respond to the notification; it is only assumed that the regulatory authority must respond before the date of the proposed assembly.

There are no statutory provisions about the right to appeal a negative decision from the regulatory authority. However, case law and specific legal provisions within constitutional and public administrative law allow challenges to oppressive and unreasonable government action. Despite this, practically speaking, it may not be possible to challenge and reverse the decision of a refusal from the regulatory authority in sufficient time for the meeting to take place, especially where the notice is submitted close to the day of the meeting.

Spontaneous Assemblies. Due to the notification requirement, spontaneous demonstrations are not allowed. According to Section 5(1) of the Public Order Act, “No person shall hold a public meeting or a public procession except in accordance with the provisions of this section.” According to Section 5(1) anyone who participates in an “unlawful assembly” is liable to imprisonment for up to one year.

Time, Place, Manner, and Other Restrictions. According to Section 5(3), subsection (2)(b) of the Public Order Act, the notification about holding an assembly must specify “the proposed date of the meeting or procession and the time thereof, which shall be between 6:00 a.m. and 6:00 p.m.” Thus, there are time restrictions for holding an assembly.

Simultaneous Assemblies. Sections 5(2) and 5(4) of the Public Order Act also do not allow more than one demonstration on the same day, at the same time or at the same venue/route. This in effect prohibits counter–demonstrations. The regulating officer will, however, allow another demonstration on a different date, or time and route.

Enforcement. Since 2011, there have been a number of demonstrations involving clashes between demonstrators and police and military personnel. The police have been accused of using excessive power to intimidate Kenyans who protest. This been affirmed by videos of police abusing protestors, particularly vulnerable groups, such as internally displaced persons (IDPs).

News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

General News

15 NGOs Deregistered On Suspicion of Funding Terrorism (December 2014)
Fifteen NGOs have been de-registered, their bank accounts frozen, assets repossessed and their names forwarded to the Anti-Terror Police and Interpol for investigation on suspicion of funding terror activities in Kenya and the Horn of Africa. Making the announcement, NGO Coordination Board chairman Fazul Mahamed Yusuf said, "Noting that NGOs are vulnerable to abuse as conduits of terrorism financing and money laundering, the Board has put measures in place to curb such occurrences." Yusuf at the same time announced the de-registration of a further 510 NGOs for non-compliance in accordance to regulation 24 of the NGOs Coordination Regulation Act of 1992.

Bill on NGO funding proposes a return to days of intolerance (November 2014)
President Kenyatta's threat to NGOs is disturbing. His speech was reminiscent of former President Daniel arap Moi's numerous attacks on civil society. If the President makes good his threat to "defund" civil society groups, (never mind that these groups do not receive any money from the Kenyan taxpayer), then Kenya will have regressed 20 years overnight.

Democracy and development under siege in Kenya (November 2014)
Currently, the Ministry of Devolution and Planning has constituted a task force to seek views and comments from stakeholders, including the general public, on the proposed amendments to the yet-to-be operationalized Public Benefits Organisations (PBA) Act. These amendments seek to curtail the power and influence of non-governmental organisations (NGOs) by restricting foreign funding. However, this task force's initiatives are largely seen as a public relation exercise because the government seems to have already taken a stand on the debate to introduce the amendments in Parliament. Political leaders allied to the ruling Jubilee coalition have consistently accused NGOs of serving foreign interests and using foreign funds to undermine the sovereignty and security of Kenya. However, no evidence has been provided to substantiate such accusations.

100,000 jobs at risk over law on NGO financing (November 2014)
New legislation to reduce foreign funding for NGOs could result in the loss of over 100,000 jobs. A proposed amendment to the Public Benefits Organisations Act of 2013 would cap foreign funding for NGOs at 15 percent of their total budgets. However, virtually all of Kenya's 8,500 NGOs rely on donor aid to fund their operations. "In areas such as the former North Eastern Province and other arid areas, 80 percent of health programs are supported by NGOs. Why would you want to kill such initiatives?" asked NGO Council chairman Ken Wafula.

Fresh Onslaught on Foreign Funding and Civic Space (October 2014)
Civil society groups are crying foul at what they see as a fresh onslaught from the Jubilee Government to check their activities after unsuccessful attempts last year to limit foreign funding. Some activists point to the ongoing Kenyan cases at the International Criminal Court (ICC) as the main reason for the renewed efforts to shrink the political and legal space in which they operate. Mr Christopher Gitari of the International Centre for Transitional Justice said that "any efforts to hold meetings with victims of the 2007/2008 post-election violence are usually closely monitored by police and intelligence officers and sometimes disrupted." In addition, a fresh amendment to the PBO Act sponsored by Gatundu South MP Moses Kuria is now in the works. The amendments, if adopted, will limit foreign funding of NGOs to 15 percent.

Kenyan President uses UK human rights plans to defend war crimes charges (October 2014)
There is a new example of the effect that political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving 1,200 dead and 600,000 displaced. Kenyatta has recently stepped down in order to face the charges. He made a speech to the Kenyan Parliament on October 6 strongly asserting Kenya's "sovereignty", and in doing so he said, "The push to defend sovereignty is not unique to Kenya or Africa. Very recently, the Prime Minister of the United Kingdom committed to reasserting the sovereign primacy of his parliament over the decision of the European Human Rights Court."

Civil Society States Position on Miscellaneous Amendments Bill 2014 (July 2014)
We, the over 200 Civil Society Organizations (CSOs) and stakeholders drawn from all the 47 counties in the Republic of Kenya meeting in Nairobi on July 14 – 15, 2014 to discuss the state and future of the civil society in Kenya, wish to register our pleasure with a number of the proposed amendments to the Public Benefit Organizations (PBO) Act and note that this is a step towards enhancing the spirit of the Act, in line with the Government's promise to support the civil society sector and promote Kenya's political and socio-economic development. While we are pleased with some of the amendments, there is still concern that some of the proposed amendments are stifling and do not promote an enabling environment for the CSO sector.

Undermine state at your own peril, says new NGO Council boss (June 2014)
A week after being elected into office in elections supervised by the Government, the new NGO Council National Chairman Wilson Kipsang Kipkazi has sounded a warning to what he terms 'CSOs undermining the State'. Kipkazi, in the company of the NGO Council Chief Executive Officer Kevinnah Loyatum, has claimed that about three foreign NGOs were working with some Civil Society Organisations (CSOs) to undermine the Jubilee government. According to the NGOs Council, "We know activities of some foreign NGOs and the millions of shillings they have channeled to the grassroots in parts of this country. We are telling them all NGOs must co-operate with the government of the day. The NGO Council will not work in isolation from the government," said Kipkazi in an interview with The Standard.

In Kenya, averting a move to strangle civil society with the financial noose, Maina Kiai (January 2014)
"In October Kenya introduced legislation capping foreign funding to NGOs and requiring that money be channeled through a government body. Though narrowly defeated, the law looked to be a death-knell for a vibrant civil society sector. But Kenya – and the region – is not out of the woods yet," says the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association

MPs throw out Bill targeting NGOs(December 2013)
The government suffered a major setback after MPs rallied to reject a Bill that sought to regulate funding for non-governmental organisations. The Bill also sought to change 48 other laws that many considered unconstitutional. The Statute Law (Miscellaneous Amendments) Bill, 2013 was shot down by MPs when MPs were asked to vote for its Second Reading.

Why the International Community Supports Development Projects in Kenya (November 2013)
Kenya's Development Partners met with Government, private sector and civil society to improve their common understanding of how they can best work together in support of progress and prosperity in Kenya. In line with aid effectiveness principles, they discussed how they could help deliver the government's plans to achieve middle income status through Vision 2030.

Goverment moves to cut NGOs foreign funding (October 2013)
The Government is set on a collision course with NGOs in the country over a proposed new law regulating the flow of foreign funds. The Miscellaneous Amendment Bill, 2013, published on October 30, will also have far-reaching implications on state corporations, particularly the National Youth Council, whose top organ is composed of members elected directly by the youth. In the new Bill, NGOs will only be able to receive more than the 15 per cent of their budget from foreign sources if they demonstrate extraordinary circumstances why they require the funds.

Civil society accuses judges of derailing reforms (November 2012)
A section of civil society has accused High Court judges of being a hindrance to judicial reforms. The groups also want Chief Justice Willy Mutunga to restore public confidence in the vetting process. The activists said the ruling by the High Court overturning the decision of the Vetting Board was a slap in the face of Kenyans, who had regained confidence in the Judiciary following a wave of reforms.

Civil society to educate public on Constitution (August 2012)
The fight for Kenyans’ constitutional rights and the implementation of the Constitution must not be left to political leaders. Civil society has called on Kenyans to reawaken and observes that Kenyans have been left out in major processes of constitution implementation.They expressed the need for educating and engaging people to ensure proper management of the transition.(Read more)

Civil society up in arms over Integrity Bill (August 2012)
A section of civil society has threatened to go to court if Parliament approves the Leadership and Integrity Bill as was presented by the government. They say the Cabinet removed key sections of the Bill that would have ensured that Kenyans have proper leaders after the next elections.

NGOs council wants funding at grassroots (June 2012)
The National Council of NGOs has urged donors to fund NGOs at the grassroots level in rural areas instead of concentrating on major cities. Council chairman Ken Wafula said donors should change the funding style and finance the groups at the county level so that they can be able to conduct civic education programs.

Civil society challenges President over pending electoral laws (June 2012)
Civil society organizations have petitioned President Kibaki not to assent to the Statute Law Miscellaneous Amendment Bill 2012, which contains controversial amendments proposed by MPs on two electoral laws. Speaking on behalf of the NGOs, Kenya Human Rights Commission Executive Director Atsango Chesoni said the bill would allow presidential election losers to be nominated to Parliament, and would deny the youth and women a chance to participate in decision making. Chesoni said “Amendments made on Section 14 of the Political Parties Act 2011, Section 22 of the Elections Act 2011 and Section 23 (2) of the Vetting of Judges and Magistrates Act 2011 by the Members of Parliament were enacted with a measure of self-bias and self-interest in the run-up to the forth coming general elections.”

Rights activists reject amended laws (June 2012)
Civil society groups have petitioned President Mwai Kibaki not to assent to the Statute Law Miscellaneous Amendment Bill 2012, which contains controversial amendments proposed by MPs on two electoral laws. The groups staged a peaceful demonstration in front of Parliament buildings and the President's office where they presented their petition.

NGOs oppose Finance Minister’s plan to tax their income (June 2012)
NGOs have opposed plans by the government to begin taxing income raised by churches, civil society groups and charities, which was proposed by Finance minister Njeru Githae. NGO Council chairman Ken Wafula says the proposal made by Githae in last week's budget will force many international NGOs to withdraw from the country while local ones will be forced to close down.

NGOs wrangle over law to rein in sector (May 2012)
Local and international charities are debating about a proposed law that aims to regulate the Sh130 billion NGO sector. Although the board that regulates NGOs has tabled the Non-Governmental Organisations Draft Bill 2012 for public debate, some charities are pushing for a different Bill. Nominated MP Sofia Abdi plans to table the Public Benefit Organisation Bill, 2012. National Council of NGOs chairman Ken Wafula, who supports the government Bill, accused Ms Abdi of working with international NGOs to defeat a “good” Bill.

Ntimama finally appoints NGO board (March 2012)
Heritage minister William ole Ntimama has finally constituted the NGO coordination board after being threatened with a lawsuit because of the two year delay that transpired. Ntimama named politicians Charles Kipyegon Too, Dee Kivuva and his Narok North competitor William Salaon ole Yiaile as board members. They will be joined by George Obondo, Paul Ntiati, Kharta Sigat and Mary Sarrisarr. They will serve for the next three years.